The court and politics

Monday

Judge-bashing is not unheard of in Arkansas, nor any other state. It is at least a semi-constant in conservative politics everywhere, and liberals can take their turn when the occasion suits them.

Judge-bashing is not unheard of in Arkansas, nor any other state. It is at least a semi-constant in conservative politics everywhere, and liberals can take their turn when the occasion suits them.

There was no complaint from the right when the U.S. Supreme Court installed George W. Bush in the White House. Liberals rose in fury when it took the lid off corporate political spending. Each side reminded the other that elections have consequences, the ideological makeup of the courts not the least of them. Those flare-ups were minor compared to past screeches.

The U.S. Supreme Court consisted of nine Communists or race-mixers when it ordered school desegregation ended in the 1950s, and similar labels were applied in Little Rock when it said “all deliberate speed” meant “now” in the case of Central High. The courts were “God-less” in reaffirming separation of church and state, and they “meddled” and “coddled prisoners” in the late 1960s and the 1970s, when they ordered the Arkansas prison system upgraded from medieval dungeons. The legislature debated whether to “invite” federal judges to “explain” their rulings before the General Assembly, and at one point then-Rep. Lloyd George of Danville suggested from the floor that the state “just defy” court orders on prison reform.

The House cheered lustily, eventually to sober up. The state courts inspired more grumbling short years back for finding the Arkansas public school system unconstitutional and ordering improvements. Again, everyone settled down. Now Newt Gingrich tells the nation that the decisions of the federal courts should have political consequences for judges, and that unpopular rulings should be countermaded by impeachment or the abolition of entire appellate circuits. “The courts have become grotesquely dictatorial, far too powerful, and I think, frankly, arrogant in their misreading of the American people,” Gingrich said in the last debate of Republican presidential candidates.

When, in 2002, the U.S. Court of Appeals for the Ninth Circuit (a favorite whipping post for the right) held that compulsory recitation of “under God” in the Pledge of Allegiance was unconstitutional, “I decided, if you had judges who were so radically anti-American that they thought ‘one nation under God’ was wrong, they shouldn’t be on the court.” The audience, Iowa red-meat Republicans, went wild.

(Rep. Michele Bachmann, a moment later, sought to grab a piece of the action, complaining that “we’ve gotten to the point where we think the final arbitrator of law is the court system. It isn’t.” Thus she suggested that one apparently can become a tax lawyer by studying only the I.R.S. code and ignoring the Constitution).

A few days later Professor Gingrich, historian, went further, asserting that judges who issue unpopular rulings and who subsequently decline to “explain” themselves to Congress or the president be hauled in by Capitol police or U.S. marshals; continued resistance or unsatisfactory answers would result in impeachment. This is gibberish and Gingrich knows it (Bachmann, it’s not clear).

To their credit, the other Republican candidates stopped well short of his prescription for constitutional chaos (described by a George W. Bush attorney general as “dangerous, ridiculous, totally irresponsible, outrageous, off the wall, and [which] would reduce the entire judicial system to a spectacle”) and contented themselves with vows to choose judges carefully. Gingrich, like Bachmann, knew their judge-baiting would delight far-right conservatives in Iowa, where three Supreme Court judges were denied retention (the process there) for their vote to overturn the state’s same-sex marriage ban. Since the court’s decision was unanimous but the other four justices were not standing for retention, bills of impeachment against them were introduced in the Iowa legislature.

The Iowa uproar, among similar episodes elsewhere, caught the attention of Chief Justice Jim Hannah of the Arkansas Supreme Court, though his response doubtless would be disappointing to religious conservatives here had his 2011 State of the Judiciary report not been so sadly under-reported.

“What I find to be new and troubling about the Iowa events is that it is not viewed as unique. There is growing evidence of a public perception that targeting judges on the basis of a particular judicial decision is ‘appropriate,’ ‘normal,’ ‘reasonable’ and — even ‘mainstream,’” Hannah wrote. “In this view, a judge is simply one more political policy maker; a politician who should be removed if he or she makes a decision with which we disagree. The problem with this position is that it is the antithesis of an independent judiciary. It strikes at the heart of our tradition of what the judiciary should be.”

Bachmann remains in single digits in Iowa polls, which show Gingrich falling precipitously after surging to the lead in the caucus now just days away. One would like to believe the latter’s steep decline owes not to his lack of campaign funds and organization but to recognition by voters there of his shameless pandering, appeals to the worst instincts of Iowa’s Republican “base,” base rhetoric for which a thinking society would forever after exclude the rhetoritician from any serious conversation.

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Steve Barnes is host on Arkansas Week on AETN.

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